Tag Archives: Peoples Tribunalls

A Judicial Web of Confusion: the ICJ, ICC, and Civil Society or Peoples Tribunals (5/24/24)

4 Jun

An intriguing sideshow during the seven months of savage genocidal violence against the entrapped Palestinian population of an estimated 2.3 million has been the attention given to international law and to international procedures available for its interpretation and enforcement. To begin with, many concerned persons wonder about why there are two distinct tribunals: the International Court of Justice (ICJ) and the International Criminal Court (ICC). Beyond this, for many never exposed to a sophisticated explanation of the process by which international law is judicially implemented the distinction between these two tribunals, both located in The Hague, is far from transparent. This short essay is a simplified introduction to the ICJ and ICC, both indispensable judicial resources of a functionally effective and equitable international legal order. Their positive contributions to law and justice are diminished to the extent that such institutions are subject to geopolitical manipulation.[1] To acquire legitimacy and respect such institutions must operate in an atmosphere of judicial independence. The record to date is mixed and difficult to assess.

At the same time, the pronouncements of these institutions can have major symbolic influence even if their rulings are ignored or violatied. The experience of the ICJ in relation to Israel’s defiance of its Interim Orders in the case of South Africa v. Israel is suggestive, adding a further element of legitimacy to civil society activism in opposition to Israel’s continuation of  the Gaza genocide.

ICJ

All states that are members of the UN are automatically parties to the legal instrument framing the activity of the ICJ known as the ‘ICJ Statute.’ The relationship between the UN and the ICJ is set forth in Chapter XIV of the Charter, Articles 92-96. This Statute frames in technical detail the role, procedure, and scope of concerns of the ICJ. The main function of ICJ is to decide legal disputes between sovereign states as an integral aspect of the UN Charter’s encouragement of ‘the pacific settlement of disputes’ conceived as a principal instrument of war prevention (UN Charter, Articles 2(3), 33-38). The underlying justification for the ICJ is to provide members of the UN with a politically independent and professionally distinguished panel of judges with strong credentials in international law to pronounce upon its relevance and development to the resolution of disputes brought before it. Such a judicial mechanism offers states an alternative to war and political stalemate. This judicial remedy is only available if both sides agree to resolve an international dispute by recourse to the ICJ and the Court decides that the dispute is of a legal character rather than being a political or moral dispute.   

Israel recently contended that there was no legal dispute with South Africa about the interpretation of the Genocide Convention, but the ICJ disagreed by a near unanimous vote of its seventeen judges. The ICJ ruled that a legal dispute between South Africa and Israel existed as to the application of the International Convention on the Prevention and Punishment of Genocide. Article IX authorizes any party to the Convention to submit a complaint relating to a legal dispute to the ICJ for resolution. The ICJ has no jurisdiction with respect to individuals or criminality, its legal authority to adjudicate being limited to states. It also lacks authority to act with respect to political disputes. This sometimes raises troublesome questions as to the distinction between law and politics.

The ICJ as an institution within the UN orbit has no enforcement capabilities of its own. Its legal judgments are mere declarations of law unless the losing State party voluntarily complies, or the Security Council possesses the political will to enforce an ICJ decision that is not being complied with by the losing party. This means that the Security Council must have support from its membership, including the affirmative vote or abstention of all five of its Permanent Members that possess a right of veto. The General Assembly possesses the authority to recommend compliance with decisions of the ICJ or other measures designed to overcome non-compliance but has no coercive authority of its own by which to implement ICJ decisions. Yet, as mentioned, civil society activism if mobilized can impose punitive responses to high profile instances of non-compliance, as here

The ICJ has certain distinctive features several of which are worth briefly mentioning:

            –there are fifteen judges elected for nine years terms, no two of which can come from the same country, and each is expected to have strong experiential credentials as a jurist.  If a party to a legal action at the ICJ is from a country not represented by one of the fifteen elected judges then it is entitled to appoint an ad hoc judge for this case. As neither Israel nor South Africa were so represented, each exercised this right to select an ad hoc judge, and thus the panel of judges in the genocide case numbered seventeen.

–over the course of its history the ICJ has earned a reputation of judicial independence and professionalism but has been criticized for excessive formalism and cumbersome procedures, centering on the lengthy intervals of years between the date of submission and that of judgment. The ICJ has never before been so deeply engaged with an ongoing high profile legal dispute, and so far, has received widespread praise for its measured and legally well-reasoned treatment of South Africa’s effort to obtain a ruling that will legally repudiate and put an end to Israel’s response to the Hamas attack of October 7 by concluding that Israel is indeed guilty of perpetrating the crime of genocide. Israel has already been ordered by the ICJ to take provisional measures in light of the humanitarian emergency imperiling Palestinian lives in numerous ways, while awaiting the decision on the merits of the allegation of genocide that will not be forthcoming for several years or long after the probable end of violence in Gaza;  

            –the judges are elected by the members of the General Assembly and Security Council, but a negative vote by one of the P5 is treated as a normal vote, and doesn’t count as a veto;

            –in response to formal requests from the distinct organs and specialized agencies that make up the UN System, including its specialized agencies, the ICJ also has a parallel authority and duty to render what are called in its Statute ‘Advisory Opinions.’ These are issued in response to formal requests, but only from organs and specialized agencies of the UN. As the language implies, the legal findings of advisory opinions are not binding, and there is no expectation that where the issues are controversial, the rulings will change behavior of the government(s) whose policies and practices are incidentally found to be unlawful by the ICJ in this advisory role, although remembering that the ICJ does not directly use an advisory opinion to assess the legality of the behavior of sovereign states. Nevertheless, the legal assessments of the judges rendering Advisory Opinions may exert a considerable educational and political influence in relation to the future development of international law. Diminishing the authority of advisory opinions is one example of how the UN balances sovereign rights of its members against the supposedly overriding authority of international law;

            –states have an option of signing up for compulsory jurisdiction, which means that if an adversary state is mutually so bound, it can invoke a legal obligation to resolve an international legal dispute by submitting it to the ICJ. In some instances, as in the Genocide Convention, the duty to have legal disputes adjudicated if a party to the treaty formally requests is written into the treaty itself;

            –the ICJ has rendered some unpopular and dubious decisions in the course of its history, as in the so-called Southwest Africa Cases back in 1966 whereby the outcome was upheld by a close vote. It upheld South Africa’s legal right to govern as the mandatory authority in South West Africa (now Namibia) by relying on the same kind of apartheid regime it applied to its own domestic racial divide.[2] Again, the secondary effects of an ICJ decision can be significant even if contrary to its legal reasoning. The anger among government of the Global South at the UN resulting from an ICJ decision that favored apartheid South Africa, led the General Assembly abruptly to terminate South Africa’s mandate, facilitating the achievement of sovereign statehood for South West Africa;

            –the contributions of the ICJ to the development of international law through its well-analyzed and researched opinions, including dissents and separate opinions, has been at least as important as its assigned priority of resolving international legal disputes. It has been given very few opportunities during its almost 80 years of existence to render judgment on legal disputes between geopolitical rivals..

ICC  

The ICC is still quite a young institution that did not come into existence until 2002, or 57 years after the UN was established. It came about as a projectthat gained political traction by creating a collaborative coalition of governments from the Global South and many civil society actors, or NGOs. To become a member of the ICC it is necessary to become a party to the Rome Statute, a stand-alone international treaty, that provides the technical framework for the operations of the tribunal. Unlike the ICJ, the ICC operates without any formal relationship to the UN.

Such a procedure requires states to submit the Rome Statute as an international treaty to diverse national constitutional procedures that involve typically signature by a representative of the executive branch of government followed by legislative approval, sometimes requiring  a super-majority. As of 2023, 124 countries have become ICC members, including all of the European states that have supported Israel’s claim to act in defense of its security, but to a lesser degree than the US.

Unlike the ICJ, the ICC has only jurisdiction over individuals who are physically subject to its authority. Members of the ICC are obligated to cooperate with its formal orders, including the arrest of individuals accused of international crimes after a lengthy investigation of the evidence of criminality has been obtained and evaluated. A weakness of the ICC is that the most important geopolitical actors, the US, China, and Russia chose not to join for pragmatic and ideological reasons, challenging the basic notion that international criminal law took precedence over national sovereignty and its legal institutions.

A controversial aspect of the Rome Statute is its grant of authority to the ICC to prosecute properly accused individuals who allegedly committed crimes on the territory of member states but were themselves nationals of non-member states. The Global West, especially the US and Israel have made this issue into a challenge in current circumstances to the effectiveness and legitimacy of ICC operations. After the Russian attack on Ukraine in 2022 the US and European members pushed hard for the arrest of Putin and others, while in the context of Israel’s genocide, these same governments were outraged when the Senior Prosecutor of the ICC recommended the issuance of arrest warrants for top Israeli leaders. At this point, there is no finality as the recommendation awaits action by a panel of three ICC judges who must decide to approve or reject. In any event, there is no prospect of implementing ICC arrest warrant against Israel as only member states are obliged to give effect to such warrants should they be issued.  

Nevertheless, even at this preliminary stage, these recommendations pertaining to arrest warrants has some adverse implications for the individuals targeted and the country of their affiliation. The indicted individuals might hesitate before traveling to countries, such as the UK and France, which are ICC members, and obligated to carry out arrests, especially if they have incorporated universal jurisdiction legislation as part of their law. It is bears on how the political actors are perceived in civil society, tilting the scales of legitimacy. This could have reputational implications for both the countries involved and for the reputation of the ICC, causing, as here, an angry Israeli backlash against all forms of internationalism.

It should be observed that in the past, the ICC has been criticized for its focus on the alleged criminal wrongdoing of political leaders in countries of the Global South, especially those from Sub Saharan Africa. When the ICC earlier attempted to investigate evidence of crimes by Israel in Occupied Palestine and those of the US in Afghanistan there was a furious reaction in Washington including the formal adoption of sanctions against ICC officials, including the ICC. The failure to move forward, despite the abundant evidence, created an impression that the ICC was a weak institution not capable of consistent professionalism or of fulfilling the expectations contained in the Rome Statute. Again, in relation to the Gaza genocide there have been calls for ‘sanctions’ against the Prosecutor and other officials of the ICC should the recommended issuance of the arrest warrants or other actions against Israelis take place.

The future of the ICC, and indeed the struggle to extend criminal accountability to the strongest political actors will be seriously affected by the outcome in Gaza, and by whether the ICC responds to current geopolitical pressures in ways that improve its reputation for judicial independence. Ever since the Nuremberg and Tokyo war crimes trials international criminal law has been seriously compromised in war/peace contexts by its failures to treat equals equally. The damning fact remains that these World War II prosecutions only addressed the crimes of the losers while excluding from consideration the crimes of the winners. Such a double standard has tainted all efforts since 1945 to strengthen generally legal accountability for international crimes. It raises the question as to whether ‘the primacy of geopolitics’ within the UN and elsewhere in managing global security is subject to challenge. The planned summit scheduled for September 22-23 on the future of the UN [Summit for the Future: Multilateral Solutions for a Better Tomorrow] should cast light on this fundamental question, but may well not touch a  topic that is so sensitive and bound to give rise to inter-governmental friction.

Peoples’ Tribunals

Ever since the Russell Tribunal of 1966-67 organized as a project of civil society activism in the middle of the Vietnam War, the ad hoc organization of such tribunals have created a non-state mode of instituting a judicial approach in situations where controversial international conflicts were not being addressed in a manner that calmed public concerns. Such tribunals can alter public discourse by media impacts and through documentation of allegations, as articulated by individuals with

reputations as public intellectuals and persons of conscience. Unlike the ICJ or ICC, the emphasis is put upon morality and politics.

It is also possible for civil society representatives to file briefs or make suggestions to the ICJ and ICC in a variety of ways. A particularly interesting initiative has been taken by the Geneva International Peace Research Institute submitting a long scholarly, prudently phrased statement to the ICC Prosecutor advancing an argument for why a formal investigation should be undertaken of the complicity crimes relating to the Gaza Genocide allegedly committed by Ursula von der Leyen in her role as  President of the European Commission.

This interplay between civil society activism and the working of the formal statist procedures deserves further investigation and commentary..   

[1] A clear case of geopolitical interference has been clearly present with respect to the role of the U agency entrusted with the implementation of the Chemical Weapons Convention in relation to the Douma Incident in 2018.

[2] The vote in the ICJ was 7-7, which according to its rules, meant that the President of the Court, who supported the South African legal position has a second ‘casting vote’ that broke the tie.

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Ralph Schoenman: Unsung Hero of Progressive Thought and Action (RIP)

30 Sep

[Prefatory Note: The post that follows was presented ‘remarks’ at a memorial for Ralph Schoenman (1935-2023) arranged by Mya Shone, and a publication of the proceedings in a format being arranged by Mya, Ralph’s devoted life partner in the lengthy last period of his life. Mya is herself a notable documentary filmmaker. Also, the event featured many progressive activists who had worked with Rallph at various stages during his lifetime, and featured Joan Mellen his former wife who remained his lifetime friend. Ralph became known to me in connection with the Vietnam war crimes tribunal conceived and organized while he served as Personal Secretary to Lord Bertrand Russell and General Secretary of the Russell Foundation in the UK. It was this innovative initiative, controversial and revolutionary in the mid-1960s. It not only remains the most comprehensive documentation of war crimes attributable to the U.S. during the early phases of the Vietnam War, that is, up to the mid-1960s, but it remains the most durable aspects of Ralph’s legacy centered on the idea of citizen jurisprudence and peoples tribunals. has become a permanent policy instrument of civil society. I have been active in these initiatives explicitly inspired by the Russell Tribunal, especially those similar undertaking organized by the progressive Italian lawyer, Lelio Basso, and his Basso Foundation, known to the world as the Permanent Peoples Tribunal with headquarters in Rome.

Ralph Schoenman was a lifelong dedicated socialist author, activist, adventurer whose death was inexplicably ignored in the public media. While still in his twenties Ralph supported the Cuban Revolution and Castro’s leadership, and wrote about colonial exploits in Africca.  He wrote a devastating critique of Zionism [The Hidden History of Zionism, 1988], and was an unwavering supporter of Palestinian struggle from its beginning.  He and Mya were among the first to enter the 1982 Sabra and Shatila massacres of Palestinians confined in Beirut refugee camps to record and report on the events to the world. Ralph also found himself as the center of some high profile controversies, with Bertrand Russell and his entourage and reportedly with Fidel Castro over the latter’s failure to make a sufficient effort to save Che Guevera’s life from a CIA assassination operation.

In my opinion Ralph Schoenman is a member of a trinity of forgotten heroes of American progressive politics, airbrushed from collective memory by mainstream media and even infrequently notice by online, independent publications. The other two are Tony Russo, confederate of Daniel Ellsberg in the publication of the Pentagon Papers and David Ray Griffin, distinguished Whitehead scholar, co-founder of the Claremont School of Theology’s ‘process theology,’ and notable, international renowned academic critic of the official version of the 9/11 attacks on the World Trade Center. I happened to be longtime friends of these three courageous figures who made selfless commitments to their sense of a better future for America and for all of humanity. I strongly suspect that there are other forgotten Ameican heroes. surely among native Americans and African Americans, who deserve for our sake, theirs’, to be remembered. I encourage others to follow my example of bringing such persons into the light.]

 In Memorium: Ralph Schoenman  (9/10/2023)

Dear Friends, Good Evening from Turkey. I feel privileged to take part in this memorial gathering to remember and celebrate the extraordinarily courageous and dedicated life of Ralph Schoenman, with whom I felt fortunate to have a close friendship over a period of many years. I am so glad that Mya Shone and Joan Mellen are both participating in this memorializing event. They were the two most important women in Ralph’s adult life and affirmed and engaged in their own lives with a similar set of commitments to peace and justice.

I want to make just one additional preliminary remark.  A memorial service of remembrance is particularly important in Ralph’s case in view of the inexcusable failure of mainstream media to review his life and contribution.  By this private initiative planned by Mya, the person closest to Ralph in recent years, that gap has begun to be closed, but there is more work that needs to be done. We should be asking ourselves why some are treated with respect at the time of their death and others are ignored, whether negligently or deliberately. Why is Daniel Ellsberg’s death treated as so much more notable than Ralph’s? True part of the explanation is that Dan, also a close friend, was an adept self-promoter, and another part has to do with the dramatic fact that before Dan turned against the established order at the end of the Vietnam War, and throughout his subsequent life, he was a rising star among the top tier of Cold War ‘defense intellectuals’ advising the U.S. Government  but this is far from the whole story, which at some point should be told fully and fairly.  

There is no doubt that Ralph was in certain ways a demanding friend and political personality, being uncompromising in his pursuit and affirmation of some unpleasant and controversial truths implicating the high and mighty, including elected national leaders. We shared similar views of the major global crises during the turbulent years of the Cold War. These included opposition to all forms of nuclearism, the Vietnam War, the anti-Shah movement in Iran, and the Zionist Project of Settler Colonialism in Occupied Palestine. While demanding in his human relations, Ralph also had tender sides of caring and unflinching emotional loyalty that made his friendship a precious reality, especially during the years we were both living in Princeton. Yet his distinguishing human quality was his fearlessness and courage when standing up for truth and righteousness, relying on his imaginative originality and organizing gifts to bring such beliefs to life when exposing the evil falsehoods underpinning the war machine and capitalist modes of exploitation.

I will devote my few minutes to Ralph’s central role in conceiving of and bringing to fruition the Bertrand Russell War Crimes Tribunal in the mid-1960s. This was a crucially complex achievement under the most difficult of wartime circumstances that brought Ralph into a confrontational encounter with the U.S. Government. It resulted in many abuses of state power, including lifting his passports, a series of deportations, and a variety of travel bans. Few can claim that became such effective irritants to those administering an unjust world as to warrant these dramatic moves to quiet criticisms and silence.   

The Tribunal also documented patterns of U.S. conduct in Vietnam that had led 20 years earlier German and Japanese surviving military and political leaders to be prosecuted and punished by death penalties imposed at the Nuremberg and Tokyo War crimes tribunals convened at the end of World War II. The Russell Tribunal compiled a comprehensive record of US criminality in Vietnam in ways that governmental and intergovernmental institutions, including the UN, failed, indeed refused, to do. Ralph, as well as being the architect of this historic undertaking, playing the leading role in constituting this singular event endorsed by Bertrand Russell and sponsored by the Russell Foundation, as presented in two sessions, held in Stockholm and Copenhagen during 1966-67.

Ralph led the difficult challenge of assembling a distinguished jury of conscience of sufficient stature that even the generally hostile media could not ignore the event. Impressively, the jury was ‘hosted’ by Jean-Paul Sartre, the leading progressive public intellectual of his day. Ralph had the temerity to join Sartre in alleging ‘genocide’ as a principal effect of the American war strategy. In addition to Sartre and Ralph, the jury attracted leading public intellectuals of that time,

including Simone de Beauvoir, Lelio Basso, Isaac Deutcher, and many others.

Although Ralph parted company with later iterations of the Russell Tribunal initiative, he deserves to be acknowledged as almost singlehandedly having made peoples tribunals a vital political instrument of progressive social activists throughout the world. Such peoples law has become part of the countless current struggles against various forms of governmental repression. This reality is a central feature of Ralph’s public legacy that those who care for humane global governance should work to keep alive and develop further.

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